Conservative name / Progressive Perspective

This is the second part of a series of articles on neo-fascism by Virtual Citizens

“Never forget that everything Hitler did in Germany was legal.” – Martin Luther King Jr.

Legitimate government versus Dictatorship

In English, the word “legitimate” comes from the Latin word legere meaning to read. For the Romans, modern political theorists like John Stuart Mill and American founders alike, legitimate government required legislation – laws which could be READ. That is, they argued that one necessary condition, to limit tyranny of the King, Emperor, or any leader, is to have laws that are written down. Legitimate governments have laws which can be judged, evaluated, and argued because the text of any and all laws, the legislation, is fixed and accessible for all to see and learn.

The principle of open, accessible, and written laws is necessary to support the axiom of Anglo-American law Ignorantia legis neminem excusat (literally ignorance of the law excuses no one, commonly translated as “ignorance of the law is no excuse”). Hence the duty of the governed is to become literate – and read the laws, and the obligation of our leaders is to govern from a source of public, written, laws where words are specific and their meanings are fixed.

The antithesis of legitimate government thus is dictatorship, a system of rule where the spoken word, of a Leviathan or Sovereign, is the law. The power and authority of a dictator only makes sense if one believes in the divine right of Kings – where the word of God, and hence the word of God’s proxy, is infallible. All but the most naïve among us recognize the potential for abuse in a system of government where the spoken word of one person governs all. In one of his essays designed to encourage the ratification of the Constitution, in Federalist #51, James Madison explained the need for a government headed by a body of legislators – not a single dictator.

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

Of course, under current American law – those we can read – we have no official dictatorship. But arguably, the Bush administration is pushing for legislation that would expand, what amounts to, dictatorial powers of the president.

Dear Congress, Please Restore the Divine Right of Kings – at least for me

What would governance look like in a state that devolved from democracy (or even a democratic republic) towards a fascist or dictatorial state? We understand the end point of dictatorship, where one person’s word is law – and rules as a supreme leader. As a matter of distinction, as proposed and adopted, supreme legal authority in the United States rests in documents of words not any person or government official. Article VI §2 of the U.S. Constitution reads:

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

What are some of the key powers or authorities of a dictator? First and foremost must be sovereign immunity, another way to say infallibility (reserved only for divinities). With sovereign immunity, the dictator is free to break any written law and cannot be prosecution for any violation. Again, such authority is not bestowed upon heads of the federal executive and such prohibition is declared in the Constitution Article I, with its description of the process and grounds for impeachment.

“Well, when the President does it, that means that it’s not illegal.”(Richard Nixon explaining his interpretation of the idea of Executive Privilege to David Frost, 19 May 1977)

Nixon’s self-serving statement was not surprising, but expected from a man who would be king. Such brings us to appreciate the regime of G. W. Bush. Bush has committed a host of actions fit for a king. And now widely admitted, they are exhibit one:

Bush authorized warrantless wiretaps – in direct violation of FISA, and in violation of the spirit of the Fourth Amendment;

Bush ordered renditions for Maher Arar, Khalid al-Masri and others – in direct violation of federal and international law;

Bush ordered an invasion of Iraq without a declaration of war or UN resolution in support of the invasion;

Bush authorized violations of the Geneva Conventions on the treatment of prisoners and civilians (cruel, inhumane and degrading treatment)[1]

Bush authorized torture of military detainees (I guess one could dispute this claim, it depends on the definition of water-boarding or stress positions);[2] and

Bush ordered that at least 14 men to be held in secret prisons, without access to attorneys, the International Red Cross or independent tribunals that could judge the legitimacy of their detention.[3]

“any time you hear [that] the United States government talking about wiretap … a wiretap requires a court order. Nothing has changed … When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so … because we value the Constitution.” (20 April 2004)

“We strongly believe [that warrantless wiretaps are] constitutional and if al Qaeda is calling into the United States we want to know why they’re calling.” (17 August 2006)

But Bush has lost his audacity. No longer does he claim that Iraq was involved in 9/11 (unlike Cheney), nor does he say that renditions and torture are necessary tools in the war on terror (well he did say that interrogators had success with alternative techniques with certain detainees), and now he is asking Congress to bestow a Regal privilege upon him – retroactive immunity. How surprising given Bush’s history and ambivalence about holding supreme power.

You don’t get everything you want. A dictatorship would be a lot easier… So long as I’m the dictator.
G. W. Bush (1998)

I told all four [Congressional leaders] that there are going to be [times when] we don’t agree … but that’s okay. If this were a dictatorship, it would be a heck of a lot easier. Just so long as I’m the dictator.
G. W. Bush (18 December 2000)

“A dictatorship would be a heck of a lot easier. There’s no question about it.” G. W. Bush (27 July2001)

Going Retro

Why does Bush want retroactive immunity and for protection against what crimes? The simple answer is that he does not want to go to prison, or be sentenced to death for violating the War Crimes Act of 1996 (WCA) or the Foreign Intelligence Surveillance Act (FISA).

The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. Because of the strict language of the 1996 War Crimes Act, then White House counsel, Alberto Gonzales wrote the infamous “torture memo” of 2002. There Gonzales advised Bush to declare that the Geneva Conventions did not apply to people that the United States captured under the rubric of the War on Terror in order to “reduced the threat of domestic criminal prosecution under the War Crimes Act.”[4]

While attorneys from the Center for Constitutional Rights and others have complained vociferously about the abuses suffered by their clients in Guantánamo Bay, Bagram Air Force Base, and other hell holes, Bush was relatively safe and secure – having abrogated U.S. treaty obligations by fiat. But a problem for Bush sprang up more recently when in June 2006 the Supreme Court ruled in Hamdan,[5] that the Geneva Conventions apply for all detainees. Thus the court ruled, in effect, that Bush committed war crimes and violated the War Crimes Act.[6] To preempt any prosecution, or grounds for articles of impeachment, Bush’s team is working with members of Congress, proposing amendments to the WCA that includes language to grant retroactive immunity.[7, 8]

The Bush Administration is circulating draft legislation to eliminate crucial parts of the War Crimes Act that would otherwise hold Bush and American officials liable under the WCA.[9] One section of the draft but does not contain the prohibitions from Article 3 of the Geneva Conventions against “outrages upon personal dignity,” covering “humiliating and degrading treatment.” Another section of the Bush proposal applies the legislation retroactively.[10] The administration plans to slip these amendments through Congress while there still is a Republican majority, as part of the military appropriations bill, or the proposals for Guantánamo tribunals, or in some new “anti-terrorism” package.[11]

Bush is now also trying to obtain retroactive immunity for his legal liability in implementing his illegal NSA spying programs.[12] No more than a few weeks after Federal District Court Judge, Anna Diggs Taylor, ruled that the NSA warrantless wiretapping of international phone calls to and from the United States was unconstitutional. She held that Bush’s program violated the Fourth Amendment, which prohibits searches without a warrant, and the First Amendment, because of its chilling effect on free speech.[13]

So Bush is “calling on the Congress to promptly pass legislation providing additional authority for the Terrorist Surveillance Program along with broader reforms in the Foreign Intelligence Surveillance Act.”[14] The Bush administration wants Congress to preempt court challenges by retroactively legalizing the spying and removing the subject entirely from judicial review by declaring that the surveillance to be an exercise of the president’s executive authority as commander in chief.[15] Now that is what we call Moxie, Bush is going to ask that Congress make him a dictator – so subtle, did Hitler do did that?

Sticks and stones will break my bones, but the new rules will KILL me!

In addition to these quasi-dictatorial efforts, team Bush has drafted new rules about torture. (Again, in conjunction with long-standing practices of executive orders, that is legislation from the executive rather than a deliberative body, what the executive says goes!) On 6 September 2006, the Department of Defense issued a new Army Field Manual on intelligence interrogation, specifying the list of approved and disallowed interrogation techniques. Rather than continue to criminalize mistreatment that the Defense Department had itself forbade, the new manual redefines the meaning of Common Article 3 of the Geneva Convention to protect civilian officials and CIA interrogators.[16] The new rules forbidding waterboarding, stress positions and other cruel and degrading treatment do not apply to the CIA or those who approve of or engage in cruel and inhumane interrogation techniques.[17] In fact this language circumvents federal laws against abusive detainee treatment by authorizing the CIA to detain and abuse suspects in the future.[18]

On the same day the Army claimed that it would stop doing torture (for reals, even though the manual forbade the very torture now prohibited), the administration proposed legislation to authorize military trials for “terrorist detainees.” Human Rights Watch complains that the plan violates almost all of the basic norms of fair justice highlighted by the Supreme Court in Hamdan.[19] If passed into law, a defendant could be convicted and executed with evidence extracted via torture, that the defendant and his attorney never see, and can never challenge. And the only automatic right of appeal would be to another military commission, with all of the judges appointed by and under the chain of command of the Secretary of Defense.[20]

Under the proposed law, the administration could accuse any non-citizen of supporting terrorist activity, anywhere, and force them into this second-class system of justice. Under this legislation, the proverbial old lady in Switzerland who gave money to a charitable arm of a “terrorist organization” could be declared an “unlawful enemy combatant,” placed in military custody, and convicted by a military commission and executed for providing “material support to terrorism.”[21] That is how any good Roman Prefect would have done it or maybe a panel of Spanish Inquisitors.

Bush wants legal authority to detain and punish people in secret, by executive fiat, wants to order others to torture, wants to dispel with the need to get court authorization to spy on Americans, and be relieved from criminal liability. This is what it means to move toward a dictatorship, a fascist state.

In defending the judgments at Nuremberg and in creating a mechanism to deter and punish aggressive war, Robert Jackson, the chief American prosecutor there held that “the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law.” If Bush succeeds and the Congress leaves him unresponsible, he will continue to be irresponsible, and it will be difficult to make future presidents responsible to the law, the Constitution or the public.

[3] Ibid. (President Bush acknowledged the existence of previously secret CIA prisons around the world where terrorist
suspects have been held and interrogated, saying 14 such al-Qaida leaders had been transferred to the military prison at
Guantanamo Bay and will be brought to trial).

[6] Patriot Daily News Clearinghouse, (one legal expert opined that Hamdan “probably could not be used
retroactively to punish anyone for employing extra-legal interrogation techniques,” but use of those techniques after the Hamdan decision
will be grounds for a war crimes prosecution. Yet, as the Bush team is trying to change the reach of the War Crimes Act, then such
is tantamount to an admission that the Bush team plans to continue to violate the Geneva Conventions – despite what the highest
court has ruled.)